Democrats blast Trump's travel ban, but legal challenges may be tough

Washington Post

a day ago

President Donald Trump's travel ban on 19 countries came under mounting criticism Thursday from congressional Democrats and at least one Republican, but legal experts predicted the order would be difficult to stop through challenges in court.
Advocates for immigrants and some Democratic state attorneys general said they are examining the restrictions — including a full ban on travelers from 12 nations and a partial ban on those from seven others — for potential legal action. Federal courts blocked two versions of a travel ban during Trump's first term before the U.S. Supreme Court upheld a third revision in 2018 after more than a year of legal wrangling.
At least one Republican elected official — Rep. Michael Lawler of New York — condemned the ban on Thursday, citing the humanitarian crisis in Haiti as a reason to remove it from the list.
Legal analysts said the administration appeared to have applied lessons from that previous experience and crafted the order in a way that makes it less susceptible to being blocked in federal court. The White House said the ban will include exceptions for legal permanent residents, refugees, current visa holders and individuals whose entry serves U.S. national interests.
'Because the Supreme Court did uphold the final, somewhat watered-down version of President Trump's third Muslim ban, a legal challenge would face hurdles,' said Edward Ahmed Mitchell, deputy director of the Council on American-Islamic Relations, which sued over the travel ban in Trump's first term.
Mitchell said the new ban is 'not as bad as it could have been' and suggested that advocates might have better success challenging the order on behalf of specific individuals rather than trying to stop it outright.
'I think we're seeing a maturing of the Trump administration's legal arguments,' said César Cuauhtémoc García Hernández, an Ohio State University law professor and the author of several books on immigration enforcement. 'The executive order that the president issued yesterday reads like a carefully drafted and thought-out legal document. That's different than the 2017 version, which read much more like a political statement or a long press release.'
A White House official, who spoke on the condition of anonymity to describe internal deliberations, said the administration has been working on developing and refining the new ban since Trump signed an executive order directing national security agencies to assess security and terrorism risks posed by other countries.
The restrictions, set to begin Monday, set off a scramble Thursday at U.S. consulate offices in the affected regions. Some officials said they were kept in the dark about the timing of the announcement a day earlier and are awaiting additional guidance from the State Department.
U.S. diplomats were instructed not to cancel previously scheduled appointments of individuals applicants, according to an intra-agency cable obtained by The Washington Post. But they were told to deny any requests for expedited appointments or visa processing for those from impacted countries.
The presidential proclamation fully restricts the entry of individuals from Afghanistan, Myanmar, Chad, Republic of Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan and Yemen. It also partially restricts the entry of travelers from Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan and Venezuela.
Democrats denounced the travel ban as inhumane and unnecessary, with Rep. Rashida Tlaib (D-Michigan) calling Trump a 'white-supremacist-in-chief' whose directive amounts to 'a shameful expansion of his hateful Muslim and African ban from his first term.'
Lawler became the first GOP House member to voice criticism, calling on the administration to remove Haiti from the list of countries facing a full ban on travelers to the United States. He said Haiti is facing an 'unprecedented humanitarian crisis' due to widespread violence.
'We have a moral duty to help. Haitians cannot do it alone,' said Lawler, whose district includes Hudson Valley, which has a large population of Haitian immigrants. 'This travel ban will only deepen the suffering of Haitians.'
Trump and senior administration officials defended the ban, citing national security concerns and saying the restrictions target countries that lack sufficient security vetting for issuing passports or whose citizens have high rates of overstaying their U.S. visas.
In a video message announcing the travel ban Wednesday, the president cited the attack in Boulder, Colorado, on Sunday that injured a dozen demonstrators marching in support of Israeli hostages in Gaza. Federal authorities have charged an Egyptian immigrant and are seeking to deport his wife and children. Egypt is not under the travel ban.
Some immigrant rights advocates accused Trump of trying to exploit the Boulder attack for political gain by announcing the travel ban just days later.
Trump told reporters in the Oval Office on Thursday that the restrictions 'can't come soon enough.' When asked whether the firebombing attack in Boulder influenced the proclamation — and why Egypt was not included — he said: 'Egypt is a country we work with very closely. They have things under control.'
Trump said the travel ban list is subject to changes, noting that some countries could be removed if they improve security vetting of travelers and others could be added depending on circumstances.
The Trump administration did not provide details about how many prospective travelers could be affected by the order. Stuart Anderson, executive director of the National Foundation for American Policy, said his organization estimates that, based on federal data from fiscal 2023, about 25,000 people annually from the 19 countries would be denied family reunification visas under the president's ban.
Anderson said another 100,000 B1 or B2 temporary visas for tourism or business, 10,000 student visas, and 2,400 J1 educational and cultural exchange visas would be denied each year.
'The way it is crafted, the folks who really will be blocked are going to be family-sponsored and employment-sponsored immigrants,' he said.
Many of the legal challenges brought against Trump's first attempt at a travel ban in 2017 hinged on discriminatory public comments the president made about Muslims and arguments that the ban, in effect, was specifically targeting them for their religious beliefs.
By the time the Supreme Court approved a third, substantially revised travel ban in 2018, North Korea and Venezuela had been added to the list, and the administration had made specific claims that allowing visitors from each of the included nations were detrimental to U.S. interests.
Aziz Huq, a constitutional law scholar at the University of Chicago, said Trump's order on Wednesday showed clear signs that his administration had learned from past mistakes.
'It's plainly written in light of the [Supreme Court's] previous ruling,' Huq said. 'The decision from 2018 makes the exercise of this power more difficult to challenge than it was previously.'
Stephen Yale-Loehr, a retired Cornell University immigration law scholar, noted that the new ban includes specific rationales for each nation on the list and contains other measures that would probably shield the order from legal claims of arbitrariness, irrationality or discrimination.
'They've clearly learned from their first go-rounds,' Yale-Loehr said.
Still, he predicted, legal challenges would arise. For example, he said, advocacy groups might seek to pursue discrimination claims if the administration's stated rationale for including a country in the ban also apply to nations not included on the list.
Emily Davies and Anna-Liss Roy contributed to this report.